Perrett v Queensland Racing Integrity Commission [2025] QCATA 51

• [3] Queensland Racing Integrity Commission ('QRIC') has filed submissions stating that the photograph in question does not exist.
• [4] I accept that statement. The application is dismissed.

Application to dismiss or strike out the proceeding

• [5] QRIC submits that under s 252AU of the Racing Integrity Act 2016 (Qld) ('RI Act') Mr Perrett is limited to a right of appeal with respect to the period of disqualification and not in relation to the fine imposed on him.
• [6] Further, Mr Perrett is limited in his appeal to any error of law on the part of the Queensland Racing Appeals Panel in confirming the period of disqualification, further that disqualification does not cover the fine imposed, as a result of the second charge.
• [7] It is submitted that the question of guilt cannot be the subject of an appeal to this Appeal Tribunal.
• [8] I agree that these are the limits imposed on the Appeal Tribunal by the RI Act. Insofar as the last point is concerned, I observe that although the underlying finding of guilt cannot be challenged on this appeal, the extent of culpability may be relevant to the penalty imposed by way of disqualification. Accordingly, issues relating to the finding of guilt may arise for consideration, albeit through the lens of an error of law relevant to the period of disqualification.
• [9] QRIC says that Mr Perrett is effectively challenging the finding of guilt made against him and that his application must therefore fail given the terms of s 252AU of the RI Act. The point is also made that as Mr Perrett's application to stay the decision of the Queensland Racing Appeals Panel was refused, he will have served his period of suspension by the time of hearing, meaning that the appeal proceeding is of no utility.

• [10] Mr Perrett in his submissions filed 25 November 2024, seeks to recast the proceedings:

(a) to treat the application to appeal as a request for a merits review under s 147 of the Racing Act 2002 (Qld);

(b) to treat the application to stay a decision as relevant to the monetary penalty given to him;

(c) so that the decision made by Queensland Racing Integrity Commission Stewards subsequently heard by the Queensland Racing Appeals Panel, is treated as an equivalent to an internal review, and that a review be listed for a fresh hearing pursuant to s 20 of the QCAT Act.

• [11] Finally, Mr Perrett asks that QRIC provide a copy of all photographs taken during the inspection of his premises that have not already been provided in the appeal book be provided to him.
• [12] Mr Perrett says that he filed an application to review a decision in the Toowoomba Magistrates Court Registry on 23 August 2024 along with an application to stay a decision but says only an application for leave to appeal or appeal was dealt with by the Tribunal at a Directions Hearing in September 2024.
• [13] It is obvious that there is some confusion as to jurisdiction.
• [14] The Appeal Tribunal only has before it an application for leave to appeal or appeal filed in the Magistrates' Court at Toowoomba on 15 August 2024 and the application to stay a decision filed on the same day. The stay application has been determined. The appeal proceeding is the subject of directions which have been met by the parties.
• [15] Since 31 March 2023, the type of QRIC decisions which can be reviewed by the Tribunal has changed. The Queensland Racing Appeals Panel has replaced QRIC's internal review system for decisions made by Stewards regarding the Rules of Racing. External review of these decisions no longer proceeds through the Tribunal.
• [16] The Tribunal does have some review jurisdiction, but as Mr Perrett seeks a merits review of a decision of the Stewards in relation to contravention of the Rules of Racing the Tribunal does not have jurisdiction to conduct the review he seeks.
• [17] The matter must continue to be treated as an application for leave to appeal or appeal.

• [18] That leaves the question as to whether there is any utility in the appeal proceeding given its limited scope and that Mr Perrett has served his period of suspension.
• [19] Mr Perrett has served his period of suspension. I do not consider that this fact means there is no utility in an appeal. A successful appeal may result in an improved disciplinary record.

Has Mr Perrett limited his appeal to only a question of law?

• [20] The next question is whether this proceeding is limited to only a question of law given the way it has been framed by Mr Perrett.
• [21] QRIC says that the only ground of appeal which may be considered by the Appeal Tribunal is the assertion that the Queensland Racing Appeal Tribunal erred in that: the appellant's case should not be in the second category but rather the third category of prohibited presentation cases as identified in Kavanagh v Racing Victoria Limited (No.2) (Review and Regulation),[1] and therefore subject to a penalty falling 'at the lower end of the scale'.
• [22] Mr Perrett says that his case falls into the third category of offences in McDonough v Harness Racing Victoria[2] therefore the four months' suspension should have been reduced.
• [23] QRIC submits that in resolving this type of challenge, the Appeal Tribunal must examine whether the Panel correctly interpreted and applied the law to the specific circumstances of the case, which is a mixed question of law and fact. QRIC relies on the decision Pivovarova v Michelsen[3] that "only on a question of law"[4] means a pure question of law. On that reasoning the Appeal Tribunal is said to have no jurisdiction given Mr Perrett's grounds of appeal raise questions of fact and mixed law and fact.
• [24] QRIC puts an alternative argument that if Mr Perrett considered he fell within a third category of culpability, he bore the burden of proving how Cobalt came to be present in his greyhound Sunrise Sally, so that a finding of little or low culpability could be made. As he did not do so other than by conjecture, the Panel was entitled to rely upon the expert evidence of the pharmacologist Dr Stanley. For that reason, it is said that the Appeal Tribunal ought to reject Mr Perrett's submission that his case falls within the third category of culpability cases.
• [25] Mr Perrett's appeal submissions do not neatly characterise his grounds of appeal by reference to errors of law. He does however raise that the Queensland Racing Appeal Panel:

(a) did not have regard to evidence before it in deciding that Mr Perrett's case fell into the second category of culpability;

(b) did not have regard to a failure to test the animal feed which obligation fell on the respondent by s 204 of the RI Act;

(c) relied upon the evidence of Dr Stanley when he was not expert in physiology;

(d) applied a wrong test by not having regard to a lack of evidence as to moral blameworthiness so as to mitigate penalty;

(e) failed to apply the Human Rights Act 2019 (Qld);

(f) did not accord procedural fairness, by failing to give him an opportunity to challenge information in his disciplinary history;

(g) accorded a wrong weight to his disciplinary history;

(h) did not have regard to evidence as to the integrity or accuracy of the sampling process or analytical process;

(i) did not accord procedural fairness by ensuring Mr Perrett had a full brief of evidence;

(j) failed to take into account relevant considerations as to the impact of the suspension period;

(k) failed to consider precedent cases in relation to the bioavailability of cobalt; and

(l) failed to properly exercise its discretion to impose a lower penalty to reflect the mitigating circumstances of the case.

• [26] When considering a strike out application, a preliminary assessment is undertaken as to whether an applicant has a reasonably arguable case on appeal. It appears from the summary of Mr Perrett's submissions in the appeal proceeding that at least some questions of law alone are raised by Mr Perrett. Notably the Queensland Racing Appeals Panel did not apply s58 of the Human Rights Act 2019 (Qld) if it concluded that it is a public entity acting in an administrative capacity.

Should the application to appeal be struck out?

• [27] I respectfully agree with the Full Court of the Federal Court in Haritos v Commissioner of Taxation[5] that in certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal. Further, whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.
• [28] Given the current lack of precision in drafting any questions of law I consider it preferable that the matter proceed to a hearing so that the issue of whether questions of law have been raised can be fully considered.
• [29] A proceeding will not be struck out unless the applicant for that result can show that the proceeding is hopeless, or so clearly untenable that it cannot succeed.[6]
• [30] On the basis of the questions raised by Mr Perrett I do not think that the matter is so untenable that it should be struck out.
• [31] The application is dismissed.

[1] [2018] VCAT 291.

[2] [2008] VRAT 6.

[3] [2019] QCA 256.

[4] Racing Integrity Act 2016 (Qld) s 252AU(2).

[5] [2015] FCAFC 92, [62] discussed in Pivovarova v Michelsen [2019] QCA 256.

[6] Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130.